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Is the Casebook Method Obsolete? William & Mary Law Review Volume 6 (1965) Issue 2 Article 3 April 1965 Is the Casebook Method Obsolete? Arthur D. Austin Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Legal Education Commons Repository Citation Arthur D. Austin, Is the Casebook Method Obsolete?, 6 Wm. & Mary L. Rev. 157 (1965), https://scholarship.law.wm.edu/wmlr/vol6/iss2/3 Copyright c 1965 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr IS THE CASEBOOK METHOD OBSOLETE? ARTHUR D. Aus'rN* The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy . .. have had a good deal more to do than the syllogism in determining the rules by which men should be governed. HOLMES, THE COMMON LAW 5 (1881). In contemporary law schools the dominant method of educating stu- dents is through the use of the official reports of actual cases. Appellate decisions are selected and positioned in a "casebook" so as to represent general legal principles or to illuminate the evolution of a modem theory of law. As a rule lecturing by the professor is kept to a controlled minimum. The essence of the method is that by requiring the student to analyze actual cases, then exposing him to the Socratic form of inter- rogation, the instructor is able to engender a more lucid understanding of the relation between juridical theories and concrete legal problems. That the casebook technique constitutes the basic medium through which aspiring lawyers are educated is beyond dispute.' As a matter of fact, the popularity of the casebook method has overflowed into other academic disciplines. Many graduate (and even some undergraduate) business schools use actual and fictional cases as a means of familiarizing students with the complexities of the commercial world.2 Yet, in spite of the acknowledged acceptance and dominance of the method, there resides in the background a swell of criticism. Doubts have appeared as to the degree of instructional efficacy contained in the casebook method. This paper is an attempt to analyze, through the history of the method, some of the basic objections and to offer recom- mendations. *Assistant Professor, Bowling Green State University. B.S., 1958, University of Virginia; LL.B., 1963, Tulane University; Member of the Virginia Bar. 1. "In its principles and outlines it has remained to this day the prevailing system of teaching and learning law..." BLAUSTEIN & PORTER, THE AMERICAN LAWYER, 167 (1954). 2. In total, during his two years at the Business School, a candidate for the M.B.A. degree is confronted with close to a thousand specific situations. Thus, case dis- cussions make a major contribution to the development of administrative capacity. 60 OFFICIAL REGISTER OF HARVARD UNIVERsiTY, 27 (1963 number 20). [ 157 1 WILLIAM AND MARY LAW REVIEW [Vol. 6:157 HISTORICAL BACKGROUND The ancestry of the casebook method is uniquely American. Its emergence as a teaching device can be traced to deficiencies in the three early systems of legal instruction-the office apprenticeship, the lecture and the use of the textbook. The earliest and certainly the most persistent method of imparting legal knowledge was through exposure to the rudiments of practice under the guidance and supervision of an attorney. The candidate spent a specified amount of time in the office of a practitioner where he would read assigned material and be informed of the necessary mechanics of practicing law. The colonial lawyer was almost exclusively the product of this office-apprenticeship system of "reading law." The non-ex- istence of a more formal mode of legal education was attributable to the frontier way of life and to the general disrepute in which lawyers were held in Colonial America. "The Colonist's feeling toward lawyers was not merely negative; they viewed lawyers with suspicion and distrust." 3 Whatever the origin of the prevailing distrust of lawyers, the result was that standards were low and anyone could label himself an attorney. There was, in short, small need for a formal legal education.' Although "reading law" in a practitioner's office remained the basic avenue into the legal profession until 1850,5 a change in methodology is discernable as early as 1779. On that date, Thomas Jefferson installed George VWythe at the College of William and Mary as the first profes- sor of law in the New World. 6 Vythe "formulated a series of lectures which followed Blackstone in some regards, in which he contrasted English and Virginia law." 7 The importance of this appointment is of the greatest magnitude. It constituted a recognition and commitment to the theory that principles of law could be conveyed to students through the same medium, the lecture, that was used to teach other subjects. The use of the lecture system did not immediately crystallize into popular usage. Apprenticeship still prevailed but the foundation for the new method was solid." Wythe's successor at William and Mary, St. 3. HARNO, LEGAL EDUCATION IN THE UNITED STATES 18 (1953). 4. WARREN, A HISTORY OF THE AMERICAN BAR, 5 (1911). 5. HuRsT, THE GROWtH OF AMERICAN LAW 256 (1950). 6. Id. at 257. 7. AUMANN, THE CHANGING AMERICAN LEGAL SYSTEM 111 (1940). 8. Reed contended that Jefferson's task in establishing a chair of la,\ at l\illiam and Mar- was made easier because of the absence of a firmly entrenched apprenticeship 1965] CASEBOOK METHOD OBSOLETE? George Tucker, made a valuable contribution towards furthering the trend of formal legal education with his publication of Blackstone in American form. These men (Wythe, Tucker, Chancellor Kent) saw legal education as a proper part of a liberal framework of general ideas in jurisprudence; and they gave them some picture of the law of nations and constitu- tional law, not as a superficial adornment of more bread and butter matters, but as a necessary to a lawyer's proper grasp of his subject.9 Almost at the same time a few enlightened colleges and universities were recognizing the educational feasibility of formalized legal instruc- tion another force of equal significance appeared. Sometime around the year 1784 Judge Topping Reeve began the operation of a school that was devoted exclusively to the teaching of law. This endeavor was unique in several respects. First, it was completely independent of any college or university. Second, and most important, it departed from the apprenticeship system by structuring its routine of instruction around the lecture. 10 The distinguishing characteristics of the school were its systematic course of lecture, delivered daily, and the fact that these were never published. Later college law school instructors, like Tucker, Kent or Story, having worked up lecture courses, were quick to publish their systematized results for the benefit of the profession at large." Primarily as a result of Judge Reeve's Litchfield School, the lecture system eventually became the major method of educating law students. Moreover, as universities and colleges gradually assumed the academic and financial burden of legal instruction it was only natural that their already established teaching device, the lecture, should be adopted by the newer law departments. 2 However, it was not until post civil war times that the lecture system solidified its position as the principal method of educating embryonic lawyers. The increased complexity of the law, the proliferation of recorded decisions, and the emergence of even more system in Virginia. Reed, Training for the Public Profession of the Law 15 CARNM. FouNiD. BuL. 116 (1921). 9. HuRsr, op. cit. supra note 5, at 258. 10. BLAusrEmw & PORTER, supra note 1 at 165. 11. Reed, supranote 8 at 131. 12. For an excellent general summary and analysis of the history and present posi- tion of law schools see, Reed, Present Day Law Schools 21 CGANEG. FouND. BuL (1928). WILLIAM AND MARY LAW REVIEW [Vol. 6:157 law schools were all significant factors. In addition, the new vitality of a formerly phlegmatic bar association was important. An effort was made to raise and tighten professional standards. And even though ad- mitted weaknesses existed in the movement, 3 the fact remains that as standards were raised,14 it necessarily followed that a more formal and systematic education, with its emphasis on lecturing, was necessary. Thus the stereotyped lecture became the basic conveyor of knowledge to aspiring attorneys. The next method, the textbook, made almost a simultaneous appearance. It was merely an amplification of the already entrenched lecture policy and in its initial form constituted little more than published lectures. The use of textbooks in the law schools was stimulated by the fact that many of the professors published expanded versions of their lectures and naturally encouraged their students to use these texts as supplementary material. The lecture and the textbook did not have sharp pedagogic differ- ences. Both were summaries on a specified and defined area of the law and both placed a premium on pure memory. There was no question of critical analysis or separation of the relevant issues from the super- fluous. And of more importance, the two systems demanded that the student accept as gospel the word of the writer or lecturer that his state- ment of the principles reflected a correct appraisal of the existing de- cisions. The law was dogmatically identified as it allegedly existed at that particular period. There was absolutely no recognition that any coeval legal doctrine is an ancient pyramid that has been pieced together with countless cases and decisions. Moreover, the combined lecture- textbook system contained two specific defects: first, the instructor- writer could incorrectly state the principle of law and secondly, the student could fail to grasp or misconstrue the principle even if it had been correctly stated.
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